As Flu Rages, Food Workers Resist Calling in Sick

Many of the people who serve your food either don’t know about or aren’t being allowed to use New York City’s sick leave guarantee

February 15, 2018

Flu viruses can live on surfaces for six to eight hours. Bon appetit!Hiroko Masuike/The New York Times

On a bench outside a small diner on the north shore of Staten Island, Stephanie, a waitress who handles busy breakfast and lunch services, sat for a quick break after the midday rush had died down. Perfectly healthy at the moment and soaking in some vitamin D from the bright winter sun, Stephanie admitted she didn’t know much about what her options would be if she were, “knock on wood,” to come down with the flu.

“I had a cold this year,” she said. “Not bad enough to skip work, though. Anyway, I work for tips, so it wouldn’t be worth it.”

Stephanie is one of many employees in the food-service industry we spoke with who have only a vague idea about their businesses’ sick day policies, a statistic that corresponds with a recent report from the Community Service Society of New York. According to the report, as of last year 55 percent of low-income workers covered by New York City’s Paid Sick Leave Law, which went into effect in 2014, had heard little or nothing about it, including 63 percent of those covered whose employers failed to provide sick days.

Those numbers could have serious implications during this year’s particularly bad flu season. Influenza and pneumonia, an occasional complication of the flu, cause more deaths each year in New York than any other infection, and the virus is highly contagious. According to the New York City Department of Health and Mental Hygiene, so far this season four children have died from the flu, and more than 19,000 cases of influenza have been reported in the city.

“People think the flu is a bad cold, but the flu is a different virus and can be very severe,” says Mirella Salvatore, an infectious diseases expert at Weill Cornell Medicine and New York–Presbyterian, who notes this has been the worst flu season at the hospital since 2009, with around 200 patients per week at its peak.

“In a populated city, it’s really hard to escape the flu,” Salvatore says. “We go on the subway, we touch an elevator button, we’re in the gym. The glass you bring to the customer if you’re in the food industry, and then someone touches the glass, touches his face — the flu can be transmitted that way, because the flu can stay on surfaces up to six to eight hours.”

For most workers in New York City, the ability to stay home if they get the flu is a right that’s covered by the Paid Sick Leave Law, which guarantees employees who work at least eighty hours per calendar year the right to take time off when they’re sick, or if they need to care for a sick family member. Employees can annually accrue a maximum forty hours of sick time; if the business has five or more employees, the time off is paid, while smaller businesses don’t have to pay for sick time.

When it comes to food-service work, there are some special considerations. For example, employees whose wages are based on tips and are entitled to paid time off must be paid minimum wage for those paid sick leave hours, but aren’t entitled to lost tips. Employees who work shifts have the option of swapping shifts, but employers can’t require that they add shifts to make up for a missed shift.

“I’m not sure if we’d get paid, but anyway it doesn’t make sense to call out, working for tips,” said a bartender working in the Financial District, echoing the thoughts of many tipped employees we spoke to. “True, you’re putting yourself at risk, and others. It’s something to think about.”

Nancy Rankin, vice president for policy research and advocacy at CSS and lead author of its report, says employee knowledge about the sick leave law won’t improve without targeted outreach and enforcement efforts by the mayor’s office and the Department of Consumer Affairs, the agency tasked with administering the law. Though widespread advertising across media platforms has largely vanished since the law’s first two years, DCA says it continues to educate employers at hundreds of events, distributes tens of thousands of pieces of educational materials, and engages in partnerships with community and labor organizations to ensure the message goes out to their members.

“We are constantly working on this,” says DCA commissioner Lorelei Salas. “We recognize that there are still workers that need to know about this. We’re looking at how to target our outreach campaign to those workers who are, according to the report, less likely to know that the law exists.”

Some of the focus has shifted to enforcement, with the agency reporting that it has recovered more than $7 million to date in fines and restitution for workers. Still, while DCA can launch proactive investigations, a large part of that enforcement is dependent on complaints that have been filed through 311 or directly through the agency.

“Much of enforcement is complaint-driven — it relies on workers to know their rights, to speak up to their employer, or to lodge a complaint with DCA,” Rankin says. “But even if you’re armed with information, many of the workers — particularly in the food industry where you have a lot of immigrant workers — even if they know their rights, may be reluctant to complain to their boss or to lodge a complaint with a government agency.”

Additionally, even where employees know about the law, several we spoke to said they weren’t likely to call out sick because they felt they were essential, while others described an unspoken pressure to avoid using sick days.

“It was a hassle, trying to get that pay,” a waiter at a small restaurant in Brooklyn said about having taken a sick day under a former manager, who resisted paying him for the shift. A waitress standing nearby agreed, adding that she’d had an easier time at a larger restaurant she’d previously worked at, where structured HR systems made things like taking a sick day institutionally normalized. “Everyone knew about it, and it wasn’t a big deal,” she said.

Workers we spoke to at larger establishments and fast-food chains were, in fact, more likely to know about the law and feel comfortable taking a sick day. “I feel like corporate makes sure we all know,” said a woman fielding calls and constructing pizzas at a Domino’s franchise in Brooklyn. “They don’t want anyone, us or customers, getting sick.”

Ensuring that kind of knowledge of the law is key, says Rankin, who notes the pressure from the CSS report helped encourage DCA to hold a joint press conference with the health department to remind workers they should stay home if they’re sick. Rankin suggests additional outreach strategies could include advertisements in drug stores, notices to be sent home from schools with students, and possibly even amending the restaurant letter grade inspection system to include whether employees know about and feel able to take sick leave.

“There was all this hoopla when the law was launched, but there are new people entering the labor force all the time, people moving to New York City from other places, people changing jobs,” Rankin says. “Coca-Cola wouldn’t say, ‘Oh, we advertised when we launched that in 2014, we’ve finished that.’ Advertising and outreach has to be repeated and ongoing.”

She also sees the current flu season as an opportunity for Mayor Bill de Blasio to simultaneously increase awareness of the law and take credit for a measure that has positively benefited so many residents, and public health at large.

“The mayor should pick up his megaphone,” Rankin says. “We’re in the midst of a flu epidemic, and that seems like the perfect time to remind people that in New York City, most of us can now, if we’re sick, not go into work with the flu. We shouldn’t send sick children to school with the flu, and we’re able to do that because we have this law.”

As we enter the second half of the flu season, which runs through May, Salvatore recommends diligent hand-washing and the use of hand sanitizer, adding that it’s not too late to get a flu shot to help protect yourself and vulnerable people around you. But if you do get sick, she says, do not put other people at risk.

NOTE: An earlier version of this article misstated the figures in the Community Service Society: It found that 63 percent of those whose employers failed to provide mandated sick days did not know about the sick leave law, not that 63 percent of those who were covered did not receive sick days.